Afghanistan Committee on March 17th, 2010

[The Chair, Conservative, Kevin Sorenson]

Bonjour, chers collègues. Good afternoon.

This is meeting two of the Special Committee on the Canadian Mission in Afghanistan, Wednesday, March 17, 2010.

I would encourage all members of this committee, if they wouldn't mind, to turn off your blackberries or cell phones or whatever.

In our second hour, just for the sake of the committee members, we wanted to let you know that we'll go to committee business to consider a number of things--first of all a motion that's been brought forward, and also the first report of the subcommittee on agenda and procedure and the plan for our future business.

In our first hour, we will continue the committee study on the transfer of Afghan detainees. As our witness this afternoon, we have Mr. Paul Champ, legal counsel of Amnesty International.

Mr. Champ, I didn't get an opportunity to meet you before, but we welcome a brief opening statement and then we'll proceed to questions from the members of our committee.

Again, welcome. If you have an opening comment of five to ten minutes or whatever, I know the committee members look forward to getting into a bit of a discussion and questions and answers with you.

[Paul Champ, Legal Counsel, Amnesty International]

Thank you very much, Mr. Chair. I want to thank you and the committee members for inviting me, on behalf of Amnesty International, to appear today.

I would like to remind the committee members that I am legal counsel for both Amnesty International and the B.C. Civil Liberties Association. I have been representing them with respect to the issue of transfer of detainees in Afghanistan since 2006. I represented both of those organizations in a court challenge that commenced in February 2007 and have also represented both of those organizations before at the Military Police Complaints Commission since February 2007.

I would just like to make some brief comments on two issues, if I may. Obviously, my clients have been closely following the excellent work of the committee and the different witnesses who have been called here and what we understand to be the issues of utmost concern with respect to the detainee transfer controversy.

There are two points we would like to make to the committee right now. First is our concern that there remains a risk of torture in Afghanistan with respect to detainees captured by Canadian Forces and handed over to Afghan authorities. I will provide a few brief comments on that. The second thing is just to provide an update to the committee on the proceedings before the Military Police Complaints Commission. As I recall, this committee started looking into this issue in October 2009 because of concerns about obstruction before the Military Police Complaints Commission, so I thought this might be a good opportunity to provide the committee with an update on the status of that process.

First, with respect to the issue of risk of torture in Afghanistan at present, it appears from our perspective that a lot of the focus over the last four or five months on this issue has been the suggestion that there were problems in Afghanistan in 2006 with the detainee transfer system and that they were fixed in May 2007. The focus has been on why it has taken so long to fix the problem. I would just like to say, on behalf of both Amnesty International and the B.C. Civil Liberties Association, that it is our view and our position, based on the evidence available, that there remains a serious and substantial risk of torture for detainees in Canadian Forces custody who are handed over to Afghan authorities.

I would remind members that the second supplementary arrangement that was signed between the Government of Afghanistan and the Government of Canada in May of 2007 allowed Canada to start monitoring detainees. Since that time, however, we have found that once Canadian diplomats started visiting detainees in custody, they began to hear numerous first-hand graphic detailed accounts of abuse and torture. I know there has been some suggestion that these allegations were not credible, but I would just remind the committee that the Federal Court considered these allegations in 2008, and Federal Court Justice Madam Anne Mactavish reviewed those allegations and reports to Canadian diplomats and said this:

These complaints included allegations that detainees were kicked, beaten with electrical cables, given electric shocks, cut, burned, shackled, and made to stand for days at a time with their arms raised over their heads.

Moreover, in some cases, prisoners bore physical signs that were consistent with their allegations of abuse. In addition, Canadian personnel conducting site visits personally observed detainees manifesting signs of mental illness, and in at least two cases, reports of the monitoring visits described detainees as appearing “traumatized”.

That's the information that was being given to Canadian diplomats in 2007. Ultimately, as we know, transfers were suspended in November 2007 for four months because instruments of torture were actually found in the interrogation cell.

We don't know what details Canadian diplomats have been learning since that time. In November 2009 Minister of National Defence Peter MacKay did say publicly that there had been three suspensions in 2009. He said one reason for suspension was that the national directorate of security had refused access to prisons for a period of time, and the other two suspensions were due to further allegations of abuse. There have been no further details on that, and we would be very interested to learn the details of those further allegations or reports of abuse. I would just remind the committee, however, that whenever you hear an allegation of abuse arising from a prison in Afghanistan, really that's a euphemism for torture.

I note that in June 2007, Minister MacKay, then Minister of Foreign Affairs, and Minister of Public Safety Stockwell Day told the public at that time, to their credit, that there had been new allegations heard from Afghan prisons, and they said then it was allegations of abuse. What we found out a year later, though, is the actual reports had said that these were individuals who were beaten with electrical cables while blindfolded, subjected to electric shocks, and hit on their feet with cables. Another man could not say what happened to him, other than the fact his toenails were missing. So it's our concern that Minister MacKay has said as recently as November 2009 that there have been very recent suspensions, last year. We don't know the details of those reports and we don't know why Canadian Forces deem it safe to transfer detainees in that context.

And finally on that point, I would say we do know and have learned that the British forces in Afghanistan have suspended transfers to Afghan authorities, specifically the national directorate of security. They made that suspension in June 2009. That moratorium on transfers continues today. One big question that's obvious to my clients is if the British forces view it as a risk of torture to transfer detainees, why does Canada deem it to be safe? So that's our concern on the contemporary risk of torture.

The second issue I would like to update the members on is where the Military Police Complaints Commission is at. As you recall, it was adjourned in October 2009 because of lack of disclosure of documents. The then chair Peter Tinsley said it was unfair to the subjects--that is, the military police officers who are the subjects of the complaints--to proceed with the hearings in the absence of full disclosure of those documents. So he adjourned the hearing until those documents can be produced.

I can inform the committee that a number of documents have been produced, both to those subjects and to ourselves. We cannot disclose what these documents contain until they've been introduced into evidence, but there has been a significant amount of disclosure finally from the government. However, there is still a large number of documents that have not yet been disclosed. Just yesterday the Military Police Complaints Commission lead counsellor, Ron Lunau, wrote to the government again asking about where the other documents were that they were waiting for from the Department of National Defence and also from the Department of Foreign Affairs. So there remains an issue over disclosure.

I'd also point out that one of the issues that was live at the time the hearings were adjourned was the concern or allegation that potential witnesses were being intimidated by Department of Justice lawyers. They were being advised and threatened not to appear before the commission and not to cooperate with legal counsel for the commission. I can advise this committee that since that time we have learned from Department of Justice counsel that all of those witnesses are now cooperating with the commission counsel, so that's a positive development.

Secondly, the issue of whether witnesses were intimidated in the past is still a live issue that will be argued at the recommencement of the hearing later this month. The hearings are scheduled to recommence on March 24 for three days of motions. There will be an adjournment for a week and then starting April 5, 2010, there will be six straight weeks of witnesses. We do not have the list of witnesses yet, but we understand the commission is continuing its work in meeting and interviewing potential witnesses, and we look forward to a final list soon.

My final point on that and the final point I'll make with respect to my opening statement is just to inform the committee that there has not been any appointment of a new chair to the Military Police Complaints Commission. The previous chair's appointment--Mr. Peter Tinsley--ended on December 11, 2009. There were statements by the government at that time that there would be a new chair appointed. There has not yet been any new chair appointed.

However, another commission member, Mr. Glenn Stannard, has been appointed acting or interim chair. Initial correspondence that we received from counsel for the commission in January 2009 was that Mr. Stannard would deal with procedural issues with respect to this hearing and that he was looking forward to another chair who had legal training being appointed, because Mr. Stannard is not a lawyer.

Approximately four weeks ago, we were informed that in the absence of any other appointment, Mr. Stannard was now appointing himself to head the commission hearing. So at this stage, we're going forward with Mr. Stannard as not only the acting chair of the commission, but also acting chair of the hearing.

I'll just point out to the members that my clients do not take any objection to Mr. Stannard himself in any way. He is the former chief of police of the city of Windsor. However, we have noted our concern that he does not have legal training per se and it appears that this is going to be a fairly complex legal proceeding. We've already had numerous objections from Department of Justice lawyers on issues concerning jurisdiction, privilege, national security immunity, and so forth, so we have concerns about the efficient operation of the proceeding.

We'd also note that there is no other police complaints body in any province of Canada that does not have a requirement that a lawyer lead it, so we have concerns about that.

That's where it stands. I'll just leave it at that.

That's my opening statement. Thank you very much, Mr. Chair.

[The Chair, Conservative, Kevin Sorenson]

Thank you, Mr. Champ.

We'll move into the first round and go to Mr. Wilfert for seven minutes, please.

[Bryon Wilfert, Liberal, Richmond Hill, ON]

I'm going to share my time with Mr. Dosanjh.

I have two quick questions to the witness.

First of all, on the issue of Mr. Iacobucci, the government has vetted these through its lawyers and government officials have vetted the documents that this committee has asked for. We haven't received them, obviously, and that is why our party continues to call for a public inquiry: because that's the only way we think we're going to get to the root of the matter.

In your opinion, is Mr. Iacobucci simply going to be vetting documents that have already been looked at, and ultimately it doesn't really matter and the Prime Minister is going to have the final say? Or do you expect anything different?

[Paul Champ]

I can advise the committee that I have had an opportunity to read the terms of reference for Mr. Iacobucci. From my reading of it, Mr. Iacobucci will essentially be providing a second opinion on the national security redactions that have already been made to documents already disclosed. It's a large volume of documents that have come to the fore since early 2007 and that had been disclosed in various litigation, both in the Federal Court and before the Military Police Complaints Commission.

As I read those terms of reference, he's doing nothing more than providing a second opinion on the redactions already made. I would point out that I would have some concern about the function of that and what is the utility of that.

My clients have continued to advocate for a full judicial public inquiry. We have raised concerns, but the Military Police Complaints Commission is really only looking at one very narrow aspect of this issue that obviously goes over several departments. It's not even looking at everything the Canadian Forces do; it's just the military police. That has been our view.

I would also point out in terms of timing that it has taken Department of Justice lawyers in the national security group an extremely long time to review and redact those documents. In the litigation before the Federal Court, I know there were rolling court orders for them to produce those documents, and they kept coming back and saying that it's taking too much time, or it's taking time, and the court granted them more time. But I can say that it took them a very long time--over a year, at least--to produce just a small amount of those documents.

With respect to Military Police Complaints Commission, on the documents that have still not been disclosed from, for example, the Department of Foreign Affairs, the commission has been asking for those documents for over two years. It's our understanding that one of the reasons why they've not been disclosed is that it's taken that long to complete the national security redactions.

All I would say is that I would be concerned that Mr. Iacobucci's mandate is no doubt going to take an extremely long time, and frankly I'm not sure what it's going to achieve, other than to provide a second opinion on what Department of Justice lawyers have already done.

[Bryon Wilfert, Liberal, Richmond Hill, ON]

Then would you suggest that it's not the best use of public dollars and that the only way to really get at the facts is a public inquiry?

[Paul Champ]

Again, I would say to the committee, that has been the position of my clients, quite strongly: that there should be a full judicial public inquiry, where, if the government is going to be paying a former justice or senior lawyer to review these documents, that person should also be asked to draw conclusions from those documents and perhaps ask questions of witnesses.

In terms of use of public dollars, I'd also point out that these same documents, precisely these same documents, in uncensored form, are going to be provided to Mr. Iacobucci, but the government is withholding them from the Military Police Complaints Commission. The Military Police Complaints Commission has been asking for over two years for the uncensored documents so they can review them. Mr. Tinsley, the former chair, wrote to Mr. MacKay on a few occasions asking him to give access to those documents to the commission.

I would just like to remind the committee that the Military Police Complaints Commission is a branch of government. It has top-secret-cleared government lawyers to review those documents, yet for reasons that have never been clear to us, the government has refused to provide those uncensored documents to that body.

[Bryon Wilfert, Liberal, Richmond Hill, ON]

Thank you.

Mr. Dosanjh.

[The Chair, Conservative, Kevin Sorenson]

Mr. Dosanjh, you have two and a half minutes, please.

[Ujjal Dosanjh, Liberal, Vancouver South, BC]

Thank you.

I have just a couple of questions. One, you mentioned that there are motions challenging the jurisdiction of the commission already being sent forth from the government lawyers. Can you shed some light on that if at all possible, if you're allowed to? That's number one.

The second question is, can you sort of make a comparison between what the practices in the U.S. and Britain are versus Canada? In the British courts some of these documents that the British government is providing are absolutely unredacted and have all kinds of details.

[Paul Champ]

On the issue of the motion on jurisdiction, as you will recall, the Attorney General of Canada challenged the Military Police Complaints Commission decision to hold public hearings into this issue. They went to Federal Court arguing that the commission cannot look at this issue at all and the hearings should be quashed.

There was a ruling in September 2009 by the Federal Court upholding some of the objections made by the government, but nevertheless concluding that there was some jurisdiction for the commission to inquire into those issues. The court made it clear that the focus must be on military police officers. However, it also said that it should look at information that was both within the possession of the Canadian Forces military police or was within the means of knowing of the military police. So we've interpreted that to mean that the commission can look at what the military police knew, or what they could have known had they investigated the matter properly.

At this point the government is making objection to, as we understand it, much of the evidence that the commission intends to call, on the basis that this isn't information that military police knew or had the means of knowing. We don't know how that's going to be tied together.

It's our view that, for example, if Canadian diplomats were making visits to prisons, making reports that detainees are telling them they've been tortured, Canadian Forces military police could have obtained those reports had they looked. But at this point it appears that the government is going to object to that kind of evidence going before the commission. We'll see what they say.

[Ujjal Dosanjh, Liberal, Vancouver South, BC]

And your response to the second question?

[Paul Champ]

The second point is that there has been, I would say, a marked or notable difference in the levels of transparency that the U.S. government and the British government have shown with respect to their detainee operations compared with the Canadian government. For example, both the U.S. government and the British government have disclosed the number of detainees they've captured. The U.K. has even gone into detail about the dates individuals were captured and the dates they were transferred. All of that is withheld or kept secret in Canada. The names of detainees.... The United States has even disclosed the names of detainees who are captured and held in their prisons in Bagram.

Another issue is that there are some documents that are starting to come out of litigation in the United Kingdom. There is a similar challenge in the United Kingdom with respect to the transfer of detainees, and there are documents coming out of there--I've seen some--and there are far fewer redactions than what we see in Canada.

[The Chair, Conservative, Kevin Sorenson]

Thank you, Mr. Champ.

Mr. Bachand, for seven minutes.

[Claude Bachand, Bloc, Saint-Jean, QC]

Thank you, Mr. Chair.

First of all, thank you for making a return appearance before the committee. Finally, we have legal status. I'm sure all of the media and all of my friends are pleased to see that today, coffee and juice are available. Many members of the media are present. Finally, we'll be able to discuss issues in a more legal context.

I'm not sure whether you took in today's question period. Many questions were asked about the possible construction of a prison in Afghanistan. As I see it, it's almost like admitting that Canada was aware that people were being tortured and that discussions had taken place with the British and the Dutch to set up their own prison. Even in today's articles, there are reports that Mr. Amrullah Saleh, the director of the centre, was really very unhappy about the situation.

According to the report:

Mr. Saleh threatened to cut off inspections and--apparently seeking to appease the NDS chief--the three countries agreed to only conduct joint visits with plenty of advance notice and limit them to once a month at most.

The minister informed us that pursuant to the second agreement, unscheduled visits could be made at any time, but here, we see that this isn't quite the case.

So then, and I think you mentioned that at the outset, torture continues to occur in Afghan prisons. Would you say my assessment is fairly similar to yours?

[Paul Champ]

Yes, absolutely.

[Claude Bachand, Bloc, Saint-Jean, QC]

Alright then.

Have you read the U.S. State Department's 2009 Human Rights Report: Afghanistan?

The facts are reported very clearly. The report says this:

“torture was commonplace among the majority of law enforcement institutions, especially the police” in Afghanistan.

This is not a report that was released seven or eight months ago, but at most only a few months ago. In fact, it is dated March 11, 2010. If we acknowledge the obvious, namely that detainees are being tortured in spite of the agreements between our government and the Afghan government, then logically, we have to call a halt to transfers immediately and take steps to ensure that those captured by the Canadian Forces are not transferred.

Are you prepared to admit that based on the U.S. State Department report and on the information available to us, there is enough evidence to justify calling an immediate stop to the transfer of detainees?

[Paul Champ]

Thank you, Mr. Bachand.

I had only heard very briefly about the questions in the House today. However, I do have some information or knowledge about the issue of prisons in Afghanistan.

I have heard through the litigation in the United Kingdom that there was an issue in 2009 where the national directorate of security refused access to the Netherlands, Britain, and Canada for a period of time, and that one concern was that the chief of the NDS, Mr. Saleh, was saying you promised you were going to build us a prison, and until you follow through with that promise, we're not letting you have access. I reviewed one document related to that litigation, where it also appears that President Karzai was backing the chief of the national directorate of security.

It could well be that this was an incident Mr. MacKay was referring to in November 2009. If you recall, Mr. MacKay did say that there were three suspensions in 2009. He said two were with respect to new allegations of abuse, and one other suspension was due to the national directorate of security barring access, so he may well have been referring to that. As I understood it, transfers are ongoing, so presumably this issue has been resolved, but it's troubling that we had no idea that was ongoing at the time.

There's another issue out of that as well, as has been reported by The Globe and Mail this morning—and I've seen other documents corroborating it—that there were discussions in 2006 to have a joint detention facility co-managed by the Afghan authorities as well as NATO forces. I have a document from March 2006 in the United Kingdom, which puts forward that proposal and says:

This proposal would be beneficial, because it would retain an Afghan face, it would lend greater confidence to meeting international obligations, and invest in Afghan infrastructure to create a lasting capability that could continue to operate when international forces withdraw.

And then it says:

This proposal is meeting a resistance from the Canadian and the Dutch.

So we don't know why that occurred.

In cross-examining Ms. Colleen Swords, the ADM for the Department of Foreign Affairs, in 2007 I heard something about this proposal. We learned that there was some discussion about a co-managed facility, but we don't know why Canada ultimately opposed that. This has been the proposal that my clients have been suggesting for a very long time, to ensure that Canada is meeting its international obligations.

On your last point, about the United States State Department report, which was just released a few days ago, unfortunately those kinds of comments or statements about the risk of torture in Afghanistan have been the same in their reports for several years. I can tell you that I've seen some of Canada's own comparable reports from the Department of Foreign Affairs. They were disclosed to us in the litigation, and for several years running they were also very similar, where Canadian reports were saying that “torture is all too common”--that was a Canadian phrase, “all too common”--in facilities. We have no reason to believe that the situation has improved in Afghan prisons. We have no evidence of that.

I can tell you I'm aware of another report in the summer of 2009 by the Afghan Independent Human Rights Commission called “Causes of torture in law enforcement institutions”. That was a very scientific study by the commission of individuals in Afghan detention. They interviewed 400 individuals, and of those over 90% claimed that they had been abused or tortured in Afghan custody.

So based on that evidence, and also what we've heard—that Canadian diplomats have received new allegations of abuse, apparently, according to Minister MacKay, in 2009—in the face of all that overwhelming evidence, according to the legal test of risk of torture, I can't see how the Canadian Forces can continue making transfers in the manner that respects international law.

[The Chair, Conservative, Kevin Sorenson]

Thank you, Mr. Champ.

We'll move to the government side.

Mr. Dechert, welcome to this committee. You have seven minutes.

[Bob Dechert, Conservative, Mississauga—Erindale, ON]

Thank you, Mr. Chair.

Mr. Champ, welcome. It's good to see you. Thank you for your appearance here this afternoon.

You mentioned the decision of Madam Justice Mactavish. I understand that in that action, on behalf of Amnesty International and the B.C. Civil Liberties Association, you made the argument that the Canadian Charter of Rights and Freedoms should apply to non-Canadians detained by the Canadian Forces in Afghanistan. And I understand that at the trial level, Madam Justice Mactavish had determined the Charter of Rights and Freedoms did not apply. That was upheld by the Federal Court of Appeal, and the Supreme Court of Canada then declined leave to appeal. Doesn't that make it the law of Canada, that the Charter of Rights and Freedoms does not apply to these detainees?

[Paul Champ]

That's correct. According to the law right now, detainees do not have the protection of the Charter of Rights and Freedoms.

[Bob Dechert, Conservative, Mississauga—Erindale, ON]

Okay.

I was just curious. In your arguments before the court, you argued that sections 7, 10, and 12 of the Charter of Rights and Freedoms would apply to the detainees. But you didn't argue that any other provisions of the charter, including section 8, “the right to be secure against unreasonable search or seizure”, and section 9, “the right not to be arbitrarily detained or imprisoned”, should apply to these detainees.

I was wondering why you didn't make these arguments. They're all legal rights. And if some of the legal rights in the charter apply, wouldn't they all apply?

[Paul Champ]

They would, indeed, all apply.

We weren't taking the position or challenging the Canadian Forces' right to capture and detain individuals in Afghanistan. According to the UN Security Council resolution approving ISAF and also the memorandum of understanding, the technical arrangements between Afghanistan and Canada, it was clear they had the legal authority to capture and detain. So we weren't taking issue with that.

“Unreasonable search or seizure” would be when you capture them and you search them, is there any breach there? We didn't have any evidence alleging that. In terms of arbitrary detention, if you are holding individuals for several months without charge, I think it could be an issue, but we had no evidence of that.

Our concern with respect to section 7 is that they were transferring individuals without any right of hearing. And the Supreme Court of Canada has held, with respect to non-Canadians who are either extradited or deported, that they have the protection of the charter if they're going to be sent to torture. And that's what we were relying on.

[Bob Dechert, Conservative, Mississauga—Erindale, ON]

Perhaps I could just get clarification, though. If you apply the charter, you don't pick and choose. And it's my understanding that sections 8 and 9 require you to have reasonable cause--search warrants and arrest warrants. Would that be reasonable procedure in a theatre of war?

[Paul Champ]

No, it wouldn't. The Charter of Rights and Freedoms does not prescribe specific procedures in all circumstances. It would be adjusted to the particular circumstances, the same way in which international human rights law, for example, and international humanitarian law interact. Humanitarian law has to deal with the laws of war. And the human rights of individuals protected by the Geneva Conventions modify international human rights law. So under the International Covenant on Civil and Political Rights, for example, the extent someone would have these kinds of rights is modified by international humanitarian law and Geneva Conventions; the exigent circumstances of armed conflict would not necessarily have that full range of rights. And we weren't arguing against that.